When should I update my will?

A will is something that, once signed, gets put away and not thought about again for many years. Wills don't expire so there is no built-in deadline for renewing them. But we should review and update our wills from time to time. The question is - when? How do we know that it's time to dust off the old wills and check them over?

For those of you (you know who you are) who did your wills so long ago that now you can no longer remember where the wills are or which lawyer drafted them or even what the will says, the answer is that you must get new wills now. If your will can't be found, in effect you have no will.

For the rest of us, a will should be reviewed after important life events take place. Obviously this looks a bit different for everyone in terms of how many years are involved, but the life events are shared by all. They are:

• you get married or divorced
• you are widowed
• you have your first child
• your children all reach the age of majority
• you retire

Other things going on in your life that should spur you to re-visit your will are:

• you own a business and are thinking about retiring or selling
• you buy a vacation property in another country
• one of your children has an addiction, bankruptcy or other problem that interferes with handling money
• you have become estranged from one of your children
• you want to set up charitable giving through your will
• your spouse is experiencing early signs of dementia
• your financial status has changed, for better or worse, since you made your will
• you have moved to a different province or country

Finally, there are events related to the will itself that require you to make some changes:

• the person named as executor has died, lost mental capacity or moved far away
• one or more of the beneficiaries has died
• you want to include additional beneficiaries or remove someone who is currently named as a beneficiary
• you want to hold some beneficiaries' shares in trust

 I encourage anyone who hasn't looked at his or her will in the last five years to take it out, skim it over, and possibly sit down with an estate planner to talk about whether the will still meets your needs. Not every review results in changes being made. If your will is still suitable, you've gained peace of mind without changing your documents.

What if the executor has dementia?

Despite the advice of estate-planning lawyers that clients review their wills from time to time, plenty of people simply don't look do that. It's not unusual for people to have the same will for many years. This can lead to a will that is sadly out of date.

A major decision that goes into any will is the choice of executor. This appointment has to be kept up to date. If not, your estate could be left without an executor who is able and willing to administer your estate.

What would happen if the executor you named in your will has become incapacitated by dementia? Obviously your executor wouldn't be able to carry out executor's duties. What happens from that point depends on the wording of your will. Hopefully you have named an alternate executor to take over. But even more than that, you must look at the wording that controls how and when the alternate may step in.

Any executor has the choice of refusing to act. He or she must sign a renunciation (a document in which he or she voluntarily steps down). A person suffering from dementia is probably not mentally able to sign any legal documents, including a renunciation.

Not so long ago, wills used to say that your alternate executor could take over only if your first choice died before you. That's not going to be any help at all if the first choice of executor is alive, but suffering from dementia and unable to voluntarily renounce.  It would require a court order to remove the executor and to allow the alternate to step in.

More modern wills say that an alternate executor can step in if the first choice executor "refuses or is unable" to act. This broader wording may effectively remove the executor, clearing the way for the alternate to take control of the estate.

If you don't have an alternate executor named, and your first choice is prevented from acting due to incapacity, the court will have to appoint an administrator.

The best way to prevent this kind of situation is to review your will occasionally to ensure that all provisions, including the choice of executor, are up to date.

An estate-planning new year's resolution

The turn of the new year certainly feels like a new beginning for many folks, and is traditionally the time we vow to stop smoking or start exercising. I have a suggestion for a different resolution. Why not resolve to review (and if necessary re-vamp) your estate plan? Some Sunday afternoon in the next few months, take out your documents and read them over. Ask yourself whether they still do what you what you want them to do.  Think about what has changed since you last did your Will - have you married? divorced? been widowed? had children or grandchildren? moved to a new province? retired? inherited money? Is your executor still ready, able and willing to act on your behalf? Do you have power of attorney and health care directives in place?

At the new year, we usually resolve to do something that we think will improve our lives or the lives of those around us. Reviewing your estate planning every few years will give those around you an enormous gift, as your documents will be there to guide them during emotionally challenging times.

Reviewing and reconsidering your estate plan - when and why?

Our friends over at All About Estates make a good point in this blog post - you have to re-examine your estate plan from time to time. The article recommends that you revisit it about every three to five years, but if you haven't looked at yours in years, don't feel badly about that. I regularly see people who make their first will when they start having children, and don't think about reviewing it until they start having grandchildren. Not that I think that's the best way to do things, but it's the way many people are. So, although I say not to feel badly about it, if your will is that old, PLEASE review it! Click here to read the article.